State v. Halder, 87974 (7-1-2008)State v. Halder, 87974 (7-1-2008)
JOURNAL ENTRY AND OPINION
{¶ 1} Biswanath Halder has filed a timely application for reopening pursuant to App. R. 26(B). Halder is attempting to reopen the appellate judgment rendered in State v. Halder, Cuyahoga County Court of Common Pleas Case No. CR-03-437717, which affirmed his conviction for the offenses of capital murder, aggravated murder, aggravated burglary, kidnaping, and unlawful possession of a dangerous ordnance. For the following reasons, we decline to reopen Halder‘s appeal.
{¶ 2} Initially, we find that the doctrine of res judicata prevents this court from reopening Halder‘s original appeal. Errors of law, that were either previously raised or could have been raised through an appeal, may be barred from further review
{¶ 3} Herein, Halder did file an appeal, with the assistance of counsel different than trial counsel and appellate counsel, with the Supreme Court of Ohio and either raised or could have raised the constitutional issue of ineffective assistance of appellate counsel. The Supreme Court of Ohio, however, dismissed Halder‘s appeal on April 23, 2008, as not involving any substantial constitutional question. Since the issue of ineffective assistance of appellate counsel was raised or could have been raised on appeal to the Supreme Court of Ohio, res judicata now bars any further litigation of the claim. We further find that the circumstances of this appeal do not render the application of the doctrine of res judicata unjust. State v. Dehler, 73 Ohio St.3d 307, 1995-Ohio-320, 652 N.E.2d 987; State v. Terrell, 72 Ohio St.3d 247, 1995-Ohio-54, 648 N.E.2d 1353; State v. Smith (Jan. 29, 1996), Cuyahoga App. No. 68643, unreported, reopening disallowed (June 14, 1996), Motion No. 71793.
{¶ 4} Finally, a substantive review of Halder‘s brief in support of the application for reopening fails to support the claim of ineffective assistance of appellate counsel. Halder must establish the prejudice which results from the
{¶ 5} “In State v. Reed (1996), 74 Ohio St.3d 534, 535, 660 N.E.2d 456, 458, we held that the two prong analysis found in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, is the appropriate standard to assess a defense request for reopening under
{¶ 6} State v. Spivey, 84 Ohio St.3d 24, 1998-Ohio-704, 701 N.E.2d 696, at 25.
{¶ 7} In support of his claim of ineffective assistance of appellate counsel, Halder advances three issues which he alleges should have been raised by appellate counsel in the original appeal: (1) Halder was denied the right to a speedy
{¶ 8} Initially, we find that Halder was not denied the right to a speedy trial. Halder was arrested on May 9, 2003 and his trial commenced on November 14, 2005. A review of the trial court docket, in CR-03-87974, clearly demonstrates that Halder‘s right to a speedy trial was tolled by the following: (1) discovery requests as made by Halder; (2) requests for continuance as filed by Halder; (3) Halder‘s “limited” waiver of the right to a speedy trial; (4) competency and sanity examinations as requested by Halder; (5) Halder‘s pro se motions to disqualify counsel; and (6) Halder‘s motion to dismiss capital components due to constitutional and international law violations. See
{¶ 9} In his second claim of ineffective assistance of appellate counsel, Halder raises 20 issues, which he argues should have been raised in the original appeal: (1) Halder was prevented from contacting the media; (2) Halder was prevented from contacting anyone; (3) trial counsel failed to communicate with Halder; (4) trial counsel failed to discuss the planned defense with Halder; (5) trial counsel failed to conduct discovery; (6) trial counsel failed to investigate and pursue all avenues of defense; (7) trial counsel failed to conduct any pretrial investigation;
{¶ 10} It is well settled that appellate counsel is not required to raise and argue meritless and/or frivolous assignments of error. Jones v. Barnes (1983), 463 U.S. 745, 77 L.Ed.2d 987, 103 S.Ct. 3308. In addition, appellate counsel cannot be considered ineffective for failing to raise every conceivable assignment of error on appeal. Id.; State v. Grimm, 73 Ohio St.3d 413, 1995-Ohio-492, 653 N.E.2d 253; State v. Campbell, 69 Ohio St.3d 38, 1994-Ohio-339, 630 N.E.2d 339. It must also be noted that consideration of the aforesaid twenty issues on appeal would not have resulted in a reversal of Halder‘s conviction for the offenses of capital murder,
{¶ 11} Finally, we find no prejudice associated with the claim that appellate counsel should have raised on appeal the failure of trial counsel to allow Halder to testify at trial. The decision to allow Halder to testify at trial falls squarely within the realm of defense counsel‘s trial strategy. Judicial review of an attorney‘s strategic decisions during the course of trial and the appellate process must be granted extreme deference. Strickland v. Washington, supra. It must also be noted that Halder has failed to demonstrate the prejudice which resulted from trial counsel‘s strategic decision to limit testimony during the course of trial.
{¶ 12} Accordingly, we find that Halder has failed to establish that he was prejudiced by the conduct of appellate counsel and must deny the application for reopening.
Application for reopening denied.
KENNETH A. ROCCO, P.J., and ANN DYKE, J., CONCUR